The Dual State and the Rule of Law: Defining the Dual State and that Definition’s Impact on our Conception of the Rule of Law

This paper aims to more completely define the Dual State framework created by political scientist Ernst Fraenkel and analyze that definition’s impact on theoretical conceptions of the rule of law. Traditionally, social scientists have viewed the “rule of law” as a uniform system; states either possess the rule of law or lack the rule of law. Fraenkel’s Dual State framework and its prevalence in both historical and modern empirical cases casts doubt on this black-or-white notion of the rule of law and raises many questions surrounding the “correct” conception of the rule of law and whether partial rule of law states can exist. Given the importance placed on the rule of law in both domestic and international contexts, it is important to determine what we mean by the “rule of law.” This paper argues that the rule of law cannot partially exist in a state and contends that the actions of past and present Dual States should lead us to adopt a substantive version of the rule of law grounded in a rights-based political philosophy. While this notion conflicts with the often supported view of the rule of law as apolitical, a commitment to the rule of law as a moral ideal warranting widespread adoption and the history of abuse associated with Dual State regimes indicate the necessity of a more substantive conception.